Commentary: Where are the Asian American federal judges?

Sonia Sotomayor’s nomination and pending confirmation as U.S. Supreme Court associate justice marks a significant milestone for the U.S. Hispanic population. By anyone’s measure, Sotomayor has lived an incredibly compelling life, from being born to Puerto Rican immigrants and growing up in the South Bronx public housing projects to graduating from Princeton University at the top of her class and presiding as a highly respected federal judge.

All the attention on her distinct ethnic background prompts one to wonder about the status of Asian Americans, particularly on the federal bench. Unfortunately, the outlook is a little more than disconcerting.

Federal judgeships have always commanded an exalted standing of prestige and respect in the U.S. legal profession. This is especially the case with Article III judges, those holding seats on the U.S.

Supreme Court, Circuit Courts of Appeal, and District Courts. These are life-tenured appointments.

However, of the 810 Article III judges actively serving on the federal bench, only seven, or less than 1 percent, are Asian American (data as of April 2008), while Asian Americans make up 3.6 percent of the U.S. population, according to the U.S. Census conducted in 2000.

This under-representation might come from a lack of Asian Americans in the legal profession. But the Asian American Bar Association (AABA) reports that approximately 5.3 percent of all attorneys in our nation’s largest law firms and 6.3 percent of all law students are Asian American.

The facts warrant a pressing concern for the plight of Asian Americans. There has never been an Asian American Supreme Court justice, and there are currently no Asian Americans actively serving on the powerful Circuit Courts of Appeal. All seven federal judgeships held by Asian Americans are on the District Court level.

The fact that there are only seven Asian American, Article III judges, with none actively serving on the various Circuit Courts or on the Supreme Court, should cause a head-scratch at the very least. So why should we care about Asian American representation on our nation’s highest courts?

First, there is the symbol of racial justice intertwined with having people of different ethnic origins holding places of power and prestige in society, not only in the private sector but in the public sector as well. Having Asian Americans on the Circuit Courts, and perhaps the Supreme Court, would go a long way toward validating the ideal of equality of opportunity in our country. It would show that our practices live up to our principles.

As Dale Minami, lead counsel in the Korematsu case involving Japanese internment during WWII, observed, “Symbolically, by people seeing an Asian American on the bench, it not only helps destroy the perception of Asian Americans as foreigners, but it will encourage more Asian Pacific Islander Americans applying for judicial positions.”

Second, looking up and seeing Asian Americans on the federal bench would help create role models among the young generation of Asian Americans. Role models have the ability to shape people’s life goals and assist in sketching a road map to achieve those goals. They can expand young people’s imagination in perceiving themselves holding those same positions and accomplishing those same things. They can show the young what they can do with their lives.

Although there is good reason to rejoice when historically underrepresented minorities and women reach the top offices of the federal judiciary, one must always remember that expertise and competence are trump cards with respect to who should take those positions.

America is and should be a land of meritocracy. But one should note that “expertise” and “competence” are often vague concepts when determining who is the “most qualified,” especially when applied to federal judges.

That concept seems more amenable to judgment according to whether one meets certain threshold standards, rather than to judgment on an absolute scale.

For example, what weight does one attach to experience as an appellate lawyer versus a federal court judge versus a law professor, and so on? Does more experience in any of those positions matter to being the “most qualified?” How does one measure “judicial temperament?” Can there be a legitimate federal judge aptitude or proficiency test?

Also, one should never lose sight of the fact that presidents restrict the scope of nominees to those with agreeable judicial philosophies and stances on particular issues.

So even though expertise and competence are trump cards, the purpose here is merely to stress the point that President Obama and future presidents should pay particular attention to identifying, for potential nomination and confirmation, those Asian Americans qualified to sit on our nation’s highest courts. Asian Americans have long been a forgotten minority when it comes to federal judgeships. It is time for this to change. ♦